The Swedish Presidency of the Council of the EU is about to re-survey Member States on the detection orders contained in the Commission’s Regulation proposed May 2022 on the removal of online child sexual abuse material (see EUROPE 12950/5) and on the impact of the very negative opinion issued by the Legal Service of the Council of the EU (see EUROPE 13176/3).
However, it had to postpone the item originally scheduled for the meeting of the Committee of Permanent Representatives on the subject on Wednesday 17 May, a source told EUROPE on Monday 15 May, pending the Commission’s argumentation.
The Commission, whose project was seriously challenged by this legal opinion, would have asked for more time to prepare for this discussion, in particular to respond in writing to the Legal Service’s observations.
On 26 April, the Legal Service of the Council of the EU had found that the draft Regulation and the injunctions directed at platforms to detect child sexual abuse content, including in interpersonal communications such as emails, private messaging loops or online telephony - audio content is also included - constituted a serious limitation of fundamental rights.
It had also ruled that these detection orders could not apply to the audio material exchanged.
However, the Commission disputes this view, says a note from 12 May intended to organise discussion among Member States.
The Swedish Presidency states in the note that the proposed detection order presents legal and technical difficulties that need to be assessed and recalls that the opinion of the Council’s Legal Service concluded that the “regime of the detection order with regard to interpersonal communications constitutes a particularly serious limitation to the rights to privacy and personal data protection”.
However, the Commission services “disagree with the Legal Service’s assessment. They underline the need to balance all the fundamental rights at stake and conclude that the proposed detection order complies with the Charter of Fundamental Rights”, the note says.
For its part, the Presidency had also collected on 27 April the positions of the Member States on four key issues concerning the detection decision, namely: end-to-end encryption, the scope of the proposal (inclusion or exclusion of interpersonal communication services and audio communications) and the issue of voluntary detection.
It is already the view of the Presidency, according to this note, that a majority of Member States are in favour of applying the detection order to interpersonal communication services regarding “known” (i.e. already reported) child sexual abuse material. The position is less clear, however, on unknown material or on ‘grooming’.
“Moreover, a clear majority of Member States seems to support the inclusion of audio communications in the scope of the Regulation”.
Things are, however, less clear on end-to-end encryption, as discussions with member countries have not been “conclusive”, between countries wishing to defend this technology for protecting private exchanges and those advocating adjustments.
While the Commission has called on platforms to determine the technology for detecting such content themselves, it has not formally prohibited the possibility of targeting encryption.
When contacted, the European Commission had not responded to our requests by our deadline.
Link to the note: https://aeur.eu/f/6vn (Original version in French by Solenn Paulic)